ROTH & ROTH - [2019] FCCA 2071

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROTH & ROTH

[2019] FCCA 2071

Catchwords:
FAMILY LAW – Parenting – unacceptable risk of harm – no time – costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Schedule 1

Cases cited:

Worth & Worth (No.2) [2019] FamCFC 126

Applicant:

MS ROTH

Respondent:

MR ROTH

File Number:

PAC 5442 of 2017

Judgment of:

Judge Obradovic

Hearing date:

13 May 2019

Date of Last Submission:

13 May 2019

Delivered at:

Parramatta

Delivered on:

19 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Duve

Solicitors for the Applicant:

Caldwell Martin Cox

Appearing for the Respondent:

No appearance

ORDERS

All previous parenting orders with respect to the children [X] born … 2006 and [Y] born … 2012 are discharged.
The mother shall have sole parental responsibility for the children [X] born … 2006 and [Y] born … 2012.
The children shall live with the mother.
The children shall spend no time with the father.
Pursuant to s.68B of the Family Law Act1975 the father is restrained by injunction from:
(a)Approaching the mother or the children in any way;
(b)Intimidating, harassing or verbally abusing the mother; and
(c)Denigrating the mother and the maternal family to the children or in front of the children or permitting or allowing any third party from doing so.
The father is to pay the mother’s costs in the amount of $12,770.50 within 28 days.
Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Roth & Roth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5442 of 2017

MS ROTH

Applicant

And

MR ROTH

Respondent

REASONS FOR JUDGMENT

These are Reasons for Judgment in respect of final parenting proceedings which proceeded on an undefended basis against the respondent father.
This is not the first time that final orders have been sought in respect of the parties’ two children, [X] who is 13 years old and [Y] who is 6 years old. Orders were made following a final hearing on 11 September 2018 (“Final Orders”), including an order restraining the father from approaching, intimidating, harassing or verbally abusing the applicant mother.
Following the making of the Final Orders, the father has continued to behave abominably towards the mother.
The mother sets out in detail the father’s behaviour post the making of the Final Orders in the affidavit(s) filed in support of final orders.
An example of the father’s behaviour is that on 13 October 2018, he was recorded by CCTV which is present in the mother’s home, to be climbing the fence to see into the mother’s backyard, attempting to open the front door and then waving and gesturing rudely into one of the cameras at the side of the house.
Specifically for example, on 23 November 2018, the father sent the mother a text message which read “You better be there slut. We will sort this out hopefully once…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ROTH & ROTH

Details

AGLC: ROTH & ROTH [2019] FCCA 2071
Case: [2019] FCCA 2071
Decision Date: 19 August 2019

CaseChat Overview and Summary

In the matter of *ROTH & ROTH*, heard before Judge Obradovic, the dispute concerned parenting arrangements for two children, [X] and [Y]. The proceedings addressed allegations of an unacceptable risk of harm to the children, the practicalities of time spent with the father, and the issue of costs.

The court was required to determine whether the existing parenting orders should be discharged, who should have parental responsibility for the children, where the children should live, and whether the children should spend any time with the father. Furthermore, the court considered whether injunctive relief was necessary to protect the mother and children, and the appropriate order regarding the mother's costs.

Applying the principles of the *Family Law Act 1975*, particularly in relation to the paramountcy of the children's best interests and the need to protect them from harm, the court found that the father posed an unacceptable risk. Consequently, all previous parenting orders were discharged. The mother was granted sole parental responsibility, and the children were ordered to live with her, spending no time with the father. In addition, an injunction was issued under s 68B of the Act, restraining the father from approaching the mother or children, intimidating or verbally abusing the mother, and denigrating the mother or her family to or in front of the children. The father was also ordered to pay the mother's costs in the sum of $12,770.50.

Orders

Orders of the court

All previous parenting orders with respect to the children [X] born … 2006 and [Y] born … 2012 are discharged.

The mother shall have sole parental responsibility for the children [X] born … 2006 and [Y] born … 2012.

The children shall live with the mother.

The children shall spend no time with the father.

Pursuant to s.68B of the Family Law Act 1975 the father is restrained by injunction from:

(a) Approaching the mother or the children in any way;

(b) Intimidating, harassing or verbally abusing the mother; and

(c) Denigrating the mother and the maternal family to the children or in front of the children or permitting or allowing any third party from doing so.

The father is to pay the mother’s costs in the amount of $12,770.50 within 28 days.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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